Civil Procedure: Pre-Trial & Trial

SMU Annual Texas Survey SMU Annual Texas Survey

Volume 5 Article 5

2019

Civil Procedure: Pre-Trial & Trial Civil Procedure: Pre-Trial & Trial

Amanda Sotak Figari + Davenport, LLP

Timothy A. Daniels Figari + Davenport, LLP

Amber D. Reece Figari + Davenport, LLP

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Part of the Civil Procedure Commons, and the State and Local Government Law Commons

Recommended Citation Recommended Citation Amanda Sotak et al., Civil Procedure: Pre-Trial & Trial, 5 SMU ANN. TEX. SURV. 81 (2019) https://scholar.smu.edu/smuatxs/vol5/iss1/5

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CIVIL PROCEDURE: PRE-TRIAL & TRIAL

Amanda Sotak*Timothy A. Daniels**Amber D. Reece***

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81II. SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . 81

III. SERVICE OF PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87IV. SPECIAL APPEARANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89V. PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

VI. PLEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93VII. DISCOVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

VIII. DISMISSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100IX. SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104X. JURY CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

XI. DISQUALIFICATION OF COUNSEL . . . . . . . . . . . . . . . . . . . 108XII. JUDGE DISQUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . 110

XIII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112XIV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

I. INTRODUCTION

The major developments in the field of civil procedure during the Sur-vey period occurred through judicial decisions.

II. SUBJECT MATTER JURISDICTION

During this Survey period, the Texas Supreme Court clarified the ap-propriate standards for determining whether a municipality was engagedin a proprietary or governmental function when entering into a contract.1In a prior opinion in the same case, the supreme court held that the pro-prietary-governmental dichotomy applied to contract claims against mu-nicipalities, explaining that lower courts’ reliance on language in Tooke v.

* B.A., Texas A&M University; J.D., Southern Methodist University DedmanSchool of Law. Partner, Figari + Davenport, LLP, Dallas, Texas.

** B.A., Colorado College; J.D., University of Texas School of Law. Partner, Figari +Davenport, LLP, Dallas, Texas.

*** B.A., University of Texas; J.D., Southern Methodist University Dedman School ofLaw. Associate, Figari + Davenport, LLP, Dallas, Texas.

1. Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 147 (Tex. 2018)(Wasson II).

81

82 SMU ANNUAL TEXAS SURVEY [Vol. 5

City of Mexia2 for the contrary proposition was misplaced.3 The underly-ing suit involved a lease entered into by the City of Jacksonville with theWassons for a lot located on a lake constructed to serve as the City’sprimary water source.4 The Wassons sued the City after it terminatedtheir lease for failure to comply with use restrictions, and the trial courtand court of appeals held that the Wassons’ suit was barred by govern-mental immunity.5 In Wasson I, the supreme court reversed without ad-dressing “whether the contract at issue was proprietary or governmental”and remanded to the court of appeals to determine that issue.6 On re-mand, the court of appeals held that the lease arose in connection with itsgovernmental functions because the City’s actions, including terminatingthe Wassons’ lease, were “to maintain a safe and healthy water supply forits citizens and to preserve the property values of the lease lots.”7 In Was-son II, the supreme court again granted review, reversed the court of ap-peals’ holding that the City was immune, and remanded for considerationof the City’s other defenses to the breach of contract claim.8

Specifically, the supreme court clarified that the City’s reasons for tak-ing the actions complained of in the lawsuit were not relevant in evaluat-ing the proprietary-governmental inquiry.9 Instead, the relevant questionwas whether the City was acting in a governmental or proprietary capac-ity when it entered into the lease.10 In other words, “the focus belongs onthe nature of the contract, not the nature of the breach.”11 In determiningthe character of the lease, the supreme court looked to the Texas TortClaims Act for “the general definitions” of proprietary and governmentalfunctions.12 Applying this framework, the supreme court stated an activ-ity was governmental “only if it is essential” to the performance of gov-ernmental duties.13 The supreme court concluded that the City engaged

2. 197 S.W.3d 325, 343 (Tex. 2006).3. Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 434 n.7 (Tex. 2016)

(Wasson I). Wasson I was discussed in the 2017 survey. Amanda Sotak et al., Civil Proce-dure: Pre-Trial and Trial, 3 SMU ANN. TEX. SURV. 69, 69–70 (2017), available at https://scholar.smu.edu/smuatxs/vol3/iss1/ [https://perma.cc/35X6-DQPN].

4. Wasson II, 559 S.W.3d at 145, 148.5. Id. at 146; Wasson I, 489 S.W.3d at 430–31.6. Wasson II, 559 S.W.3d at 146.7. Id. at 148.8. Id. at 154.9. Id. at 148.

10. Id. (explaining that the only relevant inquiry is the nature of the City’s activity orconduct in leasing the property surrounding the lake to the Wassons and others for privateuse).

11. Id. at 149 (citing and quoting Wasson I and the court of appeals’ opinion on re-mand, 513 S.W.3d 217, further explaining that the supreme court remanded for the court ofappeals to address “whether the contract at issue was propriety or governmental” and notwhat “‘the [City’s] actions in terminating’ the lease” were) (emphasis original). Id. at 148.

12. Id. at 150 (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.0215(a), defininggovernmental functions, and 101.0215(b), defining proprietary functions).

13. Id. at 153 (citing City of Houston v. Shilling, 240 S.W.2d 1010, 1011–12 (Tex. 1951),in which the supreme court rejected the claim that a city’s discretionary operation of agarbage truck repair shop was “closely related or necessary” to governmental function ofgarbage collection, emphasizing that the activity at issue must do more than merely “touchupon” the governmental function to qualify).

2019] Civil Procedure: Pre-Trial & Trial 83

in a proprietary act when it entered into the lease,14 reasoning that theCity’s decision to lease the lakefront was a voluntary, proprietary choicethat did not necessarily further the governmental function of managingthe water supply, and the City was therefore not immune from the Was-sons’ suit.15

In Meyers v. JDC/Firethorne, Ltd., the Texas Supreme Court disposedof a developer’s suit against a county commissioner seeking approval ofland development plats on a ground not raised by the parties.16 While theunderlying suit involved various governmental actors and entities, thesole claim before the supreme court was the developer’s claim against thecounty commissioner in his official capacity that both the trial court andcourt of appeals held was not barred by governmental immunity.17 De-spite the parties’ and lower courts’ focus on immunity,18 the supremecourt reversed the court of appeals’ judgment and dismissed the devel-oper’s claim with prejudice on an entirely different basis, holding that“the developer ha[d] not shown a substantial likelihood that the injunc-tion [sought] against the county commissioner will remedy its alleged in-jury.”19 In other words, the supreme court found the parties’ debate overthe commissioner’s authority was “ultimately a question of whether [thedeveloper] has standing to seek this injunction against [the commis-sioner],” and thus proceeded to address that threshold issue.20

The supreme court began by noting that the standing doctrine, whichrequires “a concrete injury to the plaintiff and a real controversy betweenthe parties that will be resolved by the court,” emanates from the separa-tion of powers and open courts provisions of the Texas constitution.21 Incases challenging the legality of government action or inaction, the su-preme court emphasized that establishing standing may be more difficultbecause its existence “depends on the unfettered choices made by inde-pendent actors not before the courts” who exercise broad discretion.22 Aplaintiff must therefore plead facts showing that discretion has been orwill be exercised “in such a manner as to produce causation and permitredressability.”23 Turning to the developer’s claim, the supreme court

14. Id. at 154.15. Id. at 153–54.16. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 479–80 (Tex. 2018).17. Id. at 483–84.18. Specifically, on review, the commissioner contended that “governmental immunity

bars [the developer’s] ultra vires suit against him because he is not the county official re-sponsible for” plat applications while the developer argued the commissioner was theproper ultra vires defendant because he “lacked authority” to halt review of its plat appli-cations. Id. at 484.

19. Id. at 480.20. Id. at 484 (“Because it is a component of subject matter jurisdiction, standing can-

not be waived and may be raised for the first time on appeal.”).21. Id. (citing TEX. CONST. art. I, § 13). The supreme court noted that the Texas stand-

ing test paralleled the federal test for Article III standing, and therefore “look[ed] to fed-eral standing requirements for guidance.” Id. at 485.

22. Id. at 486.23. Id. (citing and quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62

(1992)).


held it failed to satisfy the “third standing requirement—often referred toas ‘redressability’” because there was no remedy that “the trial courtcould fashion against [the commissioner] that would afford relief as to[the developer’s] plat applications.24 In particular, the supreme court rea-soned that the developer’s injury could not possibly be remedied by theinjunctive relief sought because the commissioner individually lacked thelegal authority to receive, process, or approve the plat applications in dis-pute.25 Without showing the commissioner’s authority to respond to therelief requested, the supreme court held the developer had no standingand dismissed its claims.26

The Texas Supreme Court enforced an expansive interpretation of theelection of remedies provision of the Texas Tort Claims Act27 in Univer-sity of Texas Health Sciences Center at Houston v. Rios.28 In that case, amedical resident sued a governmental medical center and several facultyphysicians alleging defamation and tortious interference.29 The attorneygeneral answered for the defendants and moved to dismiss the claimsagainst the physicians pursuant to Section 101.106(e).30 In response, theresident amended his petition, dropping all his claims against the centerexcept for breach of contract, leaving the physicians as the only tort de-fendants.31 The defendants filed an amended motion to dismiss but con-tinued to argue the physicians should be dismissed under Section101.106(e).32 The trial court dismissed the contract claim against thecenter and refused to dismiss the physicians.33 The “court of appeals di-vided on both reason and result,”34 and the supreme court granted the

24. Id. at 485–88.25. Id. at 488–89 (citing “the warning [it] issued” in Heckman v. Williamson Cty., 369

S.W.3d 137, 155 (Tex. 2012), that “[i]f . . . a plaintiff suing in a Texas court requests injunc-tive relief . . . but the injunction could not possibly remedy his situation, then he lacksstanding to bring that claim.”).

26. Id. at 489.27. Under the election provision, a plaintiff must make an election on filing suit

whether to sue individual employees on the theory that they acted independently and aresolely liable or to sue the governmental unit for vicarious liability. See TEX. CIV. PRAC. &REM. CODE ANN. § 101.106(a), (b) (requiring a plaintiff at the time suit is filed to make anirrevocable election between proceeding against the governmental entity or its employees,which election “forever bars any suit or recovery by the plaintiff against any individualemployee of the governmental unit [or the governmental unit] regarding the same subjectmatter”).

28. 542 S.W.3d 530, 532 (Tex. 2017).29. Id.30. Id. at 532 (TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) provides if “suit is

filed under [this chapter] against both a governmental unit and any of its employees, theemployees shall immediately be dismissed on the filing of a motion by the governmentalunit.”).

31. Id. at 533.32. Id.33. Id.34. The court of appeals affirmed the trial court’s judgment, with one justice reasoning

that defendants had the burden to prove the physicians were the center’s employees andhad not done so. A second justice concurred in the judgment, reasoning that while thephysicians were entitled to dismissal under Section 101.106(e) under the original motion,when defendants filed their amended motion, the Section 101.106(e) ground was no longerapplicable. The dissenting justice argued that the physicians’ employment by the center


defendants’ request for review.35

Relying on the election provision’s plain language, the supreme courtreversed, holding that the physicians were entitled to dismissal from thesuit “immediately” upon the filing of the defendants’ original motion todismiss.36 As such, the resident’s nonsuit of his tort claims against themedical center could not affect the physicians’ entitlement to dismissal ofthe tort claims asserted against them in the “original petition, as re-quested in defendants’ original motion to dismiss.”37 Further, the su-preme court rejected the resident’s argument that “defendants lost theirright to argue for dismissal of the tort claims originally asserted” byamending their motion to dismiss because, even assuming that Rule 65 ofthe Texas Rules of Civil Procedure38 applied to motions:39 (1) “it is thefiling of a motion to dismiss, not its content, that triggers the right todismissal” such that Rule 65, which speaks to content of the pleadings,“does not nullify the fact that it was filed” in the first place;40 and (2) tothe extent Rule 65 is inconsistent with Section 101.106(e), “the statuteprevails.”41

In a case of first impression, the Texarkana Court of Appeals addressedwhether a proposed class plaintiff’s suit becomes moot if the defendantprovides the relief sought after suit is filed, but before a class is certified,in Growden v. Good Shepherd Health System.42 An uninsured plaintiffsued a hospital under the Texas Declaratory Judgments Act for herselfand others similarly situated, asserting that the hospital’s charges for un-insured patients were unreasonable compared to insured patients, andseeking a declaration that the putative class was only liable for the rea-sonable value of the services.43 Two days after filing her petition, theplaintiff moved for class certification and requested a scheduling order.44

Eleven months later, the hospital moved to dismiss the plaintiff’s claims

had not been “effectively challenged” by the resident, and would have dismissed the physi-cians because that result was “compelled by the plain text of 101.106(e).” Id. at 534.

35. Id.36. Id. at 537 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e)).37. Id.38. Id. at 538 (stating TEX. R. CIV. P. 65 “provides that when an ‘instrument’ is

amended, ‘the instrument for which it is substituted shall no longer be regarded as a part ofthe pleading in the record of the cause.’”).

39. The supreme court declined to decide this question but noted that Rules 62through 67 of the Texas Rules of Civil Procedure “address amendments to pleadings,” and“[n]one refers to motions.” Id. at 538 n.48.

40. The supreme court further explained that “[a]mendments do not always avoid theconsequences of filing.” Id. at 538 (discussing sanctions for fictitious pleadings under Rule13).

41. Id.42. 550 S.W.3d 716, 723 (Tex. App.—Texarkana 2018, no pet.).43. Id. at 720–21. The plaintiff admitted her uninsured daughter to the emergency

room for several hours, agreed to pay “the total charges for services rendered,” and re-ceived a bill thirty days later for $25,308.92 based on the hospital’s “Chargemaster” rates,which “were substantially higher than the charges for the same services for commerciallyinsured patients and patients covered by Medicare, Medicaid, or workers’ compensation.”Id. at 720.

44. Id. at 721.


as moot because she had “paid nothing” for her daughter’s care and ithad unconditionally waived and would not collect the amounts charged.45

The trial court found the plaintiff’s claims moot and dismissed the suit forlack of jurisdiction.46 The court of appeals reversed, agreeing with theplaintiff that the hospital’s unilateral act “picking-off” her individualclaim did not moot the class claims or her claim for attorneys’ fees underthe Declaratory Judgments Act.47 The court of appeals reasoned thatwhile no Texas court had yet adopted the “picking-off” exception tomootness recognized by federal courts in the class action context, theTexas Supreme Court had adopted the “inherently transitory exception”in class action cases and discussed several other exceptions that had been“extensively explored” by federal courts.48 Noting that a “majority of fed-eral courts of appeal have recognized the picking-off exception,”49 thecourt of appeals held that the exception applied50 because: (1) plaintiff’smotion for class certification was pending when the hospital waived thebill and she had diligently pursued discovery supporting the class claims,including filing a motion to compel; and (2) it appeared that the hospital’swaiver of the bill “was not pursuant to any standard policy or procedure,but rather a strategic, ad hoc decision” designed to dispose of the case.51

Accordingly, the court of appeals held that mooting of plaintiff’s individ-ual claim did not moot the substantive class claims or the class attorneys’fee claim, and the trial court therefore erred in dismissing.52

Finally, the First Houston Court of Appeals addressed a trial court’scontinuing jurisdiction under Texas Rule of Civil Procedure 76a.53 Whena journalist sought to unseal a deposition taken in 1997, the interestedparties moved to dismiss the motion for lack of jurisdiction, which the

45. Id.46. Id. at 720–21.47. Id. at 720.48. Id. at 723 (citing cases in which the Texas Supreme Court discussed, but did not

apply, the “capable of repetition yet evading review” and “collateral consequences” excep-tions to the mootness doctrine in the class action context that, like the “picking-off” excep-tion, have been explored in “federal decisions and authorities,” which the court of appealsnoted were “pervasive,” persuasive guidance in applying Rule 42 of the Texas Rules ofCivil Procedure).

49. Id. at 724 (noting the “picking-off exception” expands the “the relation-back doc-trine” recognized by the United States Supreme Court in Sosna v. Iowa, 419 U.S. 393(1975) and “was developed to prevent defendants from strategically avoiding litigation bysettling or buying off individual named plaintiffs in a way that would be ‘contrary to soundjudicial administration.’”) (citation omitted).

50. Id. at 727 (explaining that federal courts considered the following factors in apply-ing the “picking-off exception”: (1) “when the defendant satisfied the named plaintiff’sclaim”; (2) “whether the satisfaction resulted from the standard operating procedure of thedefendant, rather than an ad hoc procedure”; and (3) whether “there is pending before thedistrict court a timely filed and diligently pursued motion for class certification.”) (citationsomitted).

51. Id.52. Id. Further, the court of appeals held that the plaintiff’s individual claim for attor-

neys’ fees likewise survived the mootness of her substantive claims because the Declara-tory Judgments Act does not require prevailing party status for recovery of attorneys’ fees.Id.

53. See TEX. R. CIV. P. 76a.


trial court granted.54 The journalist appealed, and the court of appealsaffirmed.55 The court of appeals reasoned that since the trial court’s ple-nary power expired long before the unsealing motion was filed, the trialcourt would only have jurisdiction to consider the motion if the materialssought to be unsealed were “court records” as defined by Rule 76a.56

Because the 1997 deposition had been submitted only for in camera re-view,57 it was not a Rule 76a court record, and the trial court lacked juris-diction to consider the unsealing request.58

III. SERVICE OF PROCESS

In Jeanes v. Dallas County,59 an ad valorem tax case, the Dallas Courtof Appeals upheld the entry of a default judgment against an entity de-fendant and its general partner, despite the entity having been misnamedin the citation.60 The plaintiff taxing units initially named “Charles JeanesWesley, Individually and Doing Business as Sierra Investment Associ-ates” as the sole defendant. After Jeanes answered, corrected his name,denied that he individually owned the relevant properties, and counter-claimed for a declaration to that effect,61 the taxing units filed threeamended petitions without revising the original caption. In the body ofthe third amended petition, the taxing units identified the defendants as“Charles Wesley Jeanes, Individually As General Partner of Sierra In-vestment Associates” and “Sierra Investment Associates, a Texas GeneralPartnership.”62 The citation to the entity was, however, directed to “Si-erra Investment Associates, A Texas Limited Partnership, upon whomservice may be obtained by serving its Partner, Charles Wesley Jeanes”63

and was served on Jeanes.64 Neither Jeanes nor the entity appeared forthe scheduled trial on the merits, and the trial court entered judgmentagainst them.65 Jeanes’s motion for new trial was overruled by operationof law,66 and Jeanes and the entity appealed.67

Jeanes and the entity argued that the entity citation was invalid becauseit (1) did not correctly name and identify the entity as required by Rule

54. Biederman v. Brown, 563 S.W.3d 291, 294 (Tex. App.—Houston [1st Dist.] 2018,no pet.).

55. Id.56. Id. at 301–02; see TEX. R. CIV. P. 76a(2)(a)(1) (defining “court records” as “all

documents of any nature filed in connection with any matter before any civil court, except:[ ] documents filed with the court in camera, solely for the purpose of obtaining a ruling onthe discoverability of such documents.”).

57. Biederman, 563 S.W.3d at 299.58. Id. at 301–04 (citing TEX. R. CIV. P. 76a(2)(a)(1)).59. No. 05-17-01269-CV, 2018 WL 5725326, at *1 (Tex. App.—Dallas Oct. 31, 2018, no

pet.) (mem. op.).60. Id. at *1, *6.61. Id.62. Id. at *2 (emphasis added).63. Id. (emphasis added).64. Id.65. Id.66. Id.67. Id.


99(b)(7)68 and (2) was not directed to the correct entity as required byRule 99(b)(8).69 Further, they argued that the judgment against Jeanes asthe entity’s general partner was invalid because there was no valid judg-ment against the entity due to ineffective service.70 The court of appealsbegan its review by noting that Jeanes and the entity had the opportunityto present evidence for the trial court’s consideration about why they didnot appear because they challenged the default judgment via a motion fornew trial rather than by restricted appeal.71 They failed to offer any evi-dence, however, and nothing in the record showed any entity other thanthe one identified in the third amended petition was served.72 Accord-ingly, the court of appeals held that Jeanes and the entity had failed toprove the Craddock elements required for reversal of the trial court’sjudgment.73 Specifically, the court of appeals reasoned that Jeanes’spleadings admitted a general partnership owned the subject propertiesand the entity did not adduce evidence to negate its knowledge of the suitor to excuse its failure to answer.74 Further, the court of appeals foundthat neither had demonstrated the existence of a meritorious defense tothe suit; to the contrary, neither denied that the entity owned the proper-ties or the taxes were delinquent.75

In Macs v. Lenahan, the San Antonio Court of Appeals concluded thatservice on the defendants’ attorney in accordance with an agreementmade pursuant to Rule 11 of the Texas Rules of Civil Procedure76 wasinvalid under Rule 11977 because the attorney’s agreement to accept ser-vice of process was unsworn.78 The defendants’ attorney agreed to acceptservice on their behalf through a signed Rule 11 agreement.79 When thedefendants failed to answer, the plaintiff moved for default judgment, re-

68. See TEX. R. CIV. P. 99(b)(7).69. Jeanes, 2018 WL 5725326, at *3; see TEX. R. CIV. P. 99(b)(8).70. Jeanes, 2018 WL 5725326, at *3.71. Id. at *5.72. Id.73. Id. at *5–6 (citing Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126

(Comm’n App. 1939) (holding “[a] default judgment should be set aside and a new trialordered in any case in which the failure of the defendant to answer before judgment wasnot intentional, or the result of conscious indifference on his part, but was due to a mistakeor an accident; provided the motion for a new trial sets up a meritorious defense and isfiled at a time when the granting thereof will occasion no delay or otherwise work an injuryto the plaintiff.”).

74. Id. at *6.75. Id.76. TEX. R. CIV. P. 11 (providing “[u]nless otherwise provided in these rules, no agree-

ment between attorneys or parties touching any suit pending will be enforced unless it bein writing, signed and filed with the papers as part of the record, or unless it be made inopen court and entered of record.”) (emphasis added).

77. TEX. R. CIV. P. 119 (providing a “defendant may accept service of process . . . bywritten memorandum signed by him, or by his duly authorized agent or attorney, after suitis brought, sworn to before a proper officer other than an attorney in the case, and filedamong the papers in the cause . . . .”) (emphasis added).

78. Macs v. Lenahan, No. 04-17-00033-CV, 2018 WL 280469, at *3 (Tex. App.—SanAntonio 2018, pet. denied) (mem. op.).

79. Id. at *1.


lying on the signed Rule 11 agreement to prove service.80 The trial courtgranted the motion for default judgment the same day it was filed, award-ing the plaintiff almost $3.1 million in damages and attorneys’ fees.81 Af-ter the judgment became final and unappealable, the defendants filed abill of review, “asserting that fraud by [their attorney] caused the defaultjudgment” to be entered and it should be set aside.82 The defendantsmoved for summary judgment on their bill of review, arguing that thejudgment “was rendered against them without effective service of pro-cess,83 without being provided notice of the default judgment, and with-out [plaintiff] filing proof of service at least 10 days before moving for adefault judgment.”84 The plaintiff filed a cross-motion.85 The trial courtgranted the plaintiff’s motion and dismissed the bill of review withprejudice.86

The court of appeals reversed the trial court’s summary judgment orderand rendered judgment granting the bill of review and setting aside thedefault judgment.87 Noting that “there must be strict compliance with theappropriate service rules” before default judgment may properly begranted, the court of appeals held that the “unsworn Rule 11 agreement. . . was not in strict compliance with Rule 119 and could not serve as avalid waiver of citation or cure the defects in” service.88 Given the lack ofeffective service,89 the court of appeals concluded that the trial court hadnot acquired in personam jurisdiction over the defendants, and the de-fault judgment was thus void.90

IV. SPECIAL APPEARANCE

In an appeal “aris[ing] from a modern-day cattle rustling scheme,” theFort Worth Court of Appeals affirmed in part and reversed in part a trialcourt’s determination that it did not have personal jurisdiction over twoindividual defendants in Northwest Cattle Feeders, LLC v. O’Connell.91 Inthat case, a Nebraska cattle broker, through its chief financial officer and

80. Id.81. Id.82. Id.83. The defendants explicitly argued that service on their attorney under the Rule 11

agreement was not effective under Rule 119. Id. at *2.84. Id. at *1.85. Id.86. Id.87. Id. at *3.88. Id. at *2–3.89. Id. at *3. The court of appeals explained that a proponent, upon showing it was not

served with notice of the suit, is “relieved from” the ordinary bill of relief requirementsbecause the underlying judgment is “constitutionally infirm.” Id. at *2.

90. Id. at *3. The court of appeals noted that the trial court’s entry of the defaultjudgment was also improper under Rule 107 of the Texas Rules of Civil Procedure becausethe Rule 11 agreement was filed “the very same day” that judgment was entered. Id. at *3n.1 (citing TEX. R. CIV. P. 107(h), which “provides that no default judgment may begranted unless the citation with the officer’s return shall have been on file with the clerkfor ten days.”).

91. 554 S.W.3d 711, 715–16 (Tex. App.—Fort Worth 2018, pet. denied).


president, entered into an agency relationship with a Texas resident toallow him to buy and sell cattle on the broker’s behalf.92 The broker pro-vided the Texas agent with “one of its checkbooks along with a stamp of[its chief financial officer’s] signature to endorse the checks.”93 The bro-ker sold 554 steers to a buyer for $798,351.19, and advised the buyer thatthe steers were located on the Texas agent’s farm. After paying for thesteers in full, the buyer decided to leave them under the Texas agent’scare “to graze before sending them to another location.”94 A few monthslater, the broker learned its bank account was overdrawn by $1 millionand it was likely that the Texas agent had orchestrated a “check-kiting”scheme causing the deficiency.95 The broker’s chief financial officer andpresident met in Nebraska about the overdraft, after which the president“drove all night to reach Texas” to confront the agent.96 On the waydown, the president contacted the buyer to advise “there was a ‘problemin Texas,’” and asked him to come to the agent’s farm.97 Upon the presi-dent’s arrival in Texas, the agent admitted his fraud; and the presidentseized about 900 cattle located on the agent’s farm. The buyer’s 554 steers“were not among” them, however, because the agent already had soldthem to a third party.98 The broker’s president was able to sell most ofthe seized cattle to pay down the overdraft and transferred only 41 ofthem to the buyer.99

The buyer sued the broker, its Texas agent, and the broker’s chief fi-nancial officer and president in Texas, asserting among others, fraudclaims based on the president’s representations to the buyer after discov-ery of the agent’s scheme.100 The president and chief financial officerfiled special appearances in response, arguing that their sole contact withTexas had been in their capacity as officers of the broker and not as indi-viduals.101 The trial court granted the special appearances and dismissedthe claims against them for lack of personal jurisdiction.102

92. Id.93. Id. at 716. The court of appeals’ opinion noted here that the Texas resident agent

“had a criminal history: in 2001, he was convicted and imprisoned for bank fraud.” Id.94. Id.95. Id.96. Id.97. Id.98. Id. at 717.99. Id.

100. Id. Specifically, the buyer alleged that the broker’s president represented that col-lection efforts were underway and that “the cattle collected would be used to help try tomake all those impacted by [the agent’s] fraudulent scheme whole, including [the buyer]”.Id. at 718. Further, the buyer alleged that in reliance on the belief the broker’s presidentwas acting for the “team,” the buyer did not take “any direct action to take possession ofcattle found” and “accepted shipment of approximately 41 head of cattle . . . for feedingand care.” Id. The buyer alleged that contrary to the president’s representations, the bro-ker was acting solely for the broker’s benefit because the proceeds from sale of the seizedcattle were not shared with the broker’s customers “victimized by the scheme,” resulting infurther harm to the buyer. Id. at 719.

101. Id. at 719–20.102. Id. at 720.


On appeal, the court of appeals concluded that the pleadings and evi-dence established sufficient minimum contacts between the broker’s pres-ident and Texas to support the court’s exercise of specific personaljurisdiction over him.103 The court of appeals emphasized that the claimsagainst the president “principally focus on his alleged misrepresentation,an event that occurred in Texas.”104 The court of appeals reasoned thateven if the president was acting for the broker, Texas law is clear that “anagent who knowingly participates in a tortious or fraudulent act may beheld individually liable to third persons even though he performed the actas an agent of the corporation.”105 Further, the court of appeals con-cluded that exercising specific personal jurisdiction over the president didnot offend notions of fair play and substantial justice because the buyer’sinterest in adjudicating claims against all of the defendants in one forumoutweighed any burden on the president to respond in Texas.106 With re-gard to the chief financial officer, however, the court of appeals affirmedthe trial court’s grant of his special appearance,107 reasoning that thebuyer-investor “did not plead facts specifying how [the chief financial of-ficer] encouraged, knew about, or was involved in the alleged misrepre-sentation in Texas” by the president.108

V. PARTIES

In Williamson v. Howard, the El Paso Court of Appeals concluded thata party designated as a responsible third party pursuant to Chapter 33 ofthe Texas Civil Practice and Remedies Code does not have a justiciableinterest in the suit permitting intervention under Texas Rule of Civil Pro-cedure 60.109 “In this pro se eviction case,” a tenant under a “month-to-month oral lease” of a trailer park lot sued the executive director of anorphanage that inherited ownership of the trailer park upon the death ofits prior owner.110 The orphanage did not want to operate the trailer parkand tasked a management company with closing the park and transition-

103. Id. at 724.104. Id.105. Id. at 725.106. Id. at 727. In this regard, the court of appeals noted that the president had already

traveled to Texas to testify in the broker’s separate suit against the Texas agent, which wastried to a jury, showing that any burden on the president of participating in Texas litigationwas not “onerous.” Id. at 727.

107. Id. at 728. The court of appeals affirmed the lack of personal jurisdiction over thechief financial officer “except to the extent of [the buyer’s] derivative denuding claims”against him. Id. (explaining that “[t]he ‘denuding’ theory allows for a defendant’s personalliability for the obligations of a corporation when the defendant has stripped the corpora-tion of its assets that the corporation could have used to pay a creditor or a claimant.”). Id.at 729. The court of appeals concluded that the trial court could exercise jurisdiction overthe buyer’s denuding claim against the broker, which could result in the president and chieffinancial officer being held derivatively liable for the broker’s liability, because no partyasserted on appeal that the broker lacked sufficient contacts with Texas to support the trialcourt’s exercise of personal jurisdiction over it. Id. at 729–30.

108. Id. at 728.109. Williamson v. Howard, 554 S.W.3d 59, 67 (Tex. App.—El Paso 2018, no pet.).110. Id. at 63–64.


ing the tenants. In that process, the tenant alleged she was promised mov-ing assistance and $200 for her storage unit by the orphanage’s director,which never materialized.111 About a year after the park’s closure, theplaintiff-tenant sued the orphanage director “in his personal and profes-sional capacity” in justice court, alleging violations of the Texas Decep-tive Trade Practices Act, violations of the Texas Property Code, andfraud.112 The director moved to designate the management company as aresponsible third party, which the justice court allowed.113 The manage-ment company then moved to intervene, and the justice court denied thedirector’s motion to strike the intervention.114 After several pleadingamendments and a jury trial, the justice court granted a directed verdictin favor of the director, management company, and several other parties,and plaintiff appealed to county court.115 The county court granted thedirector’s renewed motion to strike the management company’s interven-tion, and ultimately dismissed all of the tenant’s claims on pleas to thejurisdiction or directed verdict.116

On appeal, the tenant complained that the county court granted themotion to strike the management company’s intervention.117 In address-ing the propriety of the order, the court of appeals quoted Rule 60,118

observing that once the director moved to strike the intervention, themanagement company bore the burden “to show a justiciable interest inthe litigation.”119 In response to the motion to strike, the managementcompany’s only asserted justiciable interest was its designation as a re-sponsible third party, and the tenant relied on the same alleged intereston appeal.120 Because designation as a responsible third party underChapter 33 did not impose any liability on the management company,121

however, the court of appeals held its designation alone did not give themanagement company a justiciable interest in the suit.122 Accordingly,the court of appeals concluded that the county court did not abuse its

111. Id.112. Id. at 64.113. Id.114. Id.115. Id.116. Id.117. Id. at 65.118. Id. at 66 (quoting TEX. R. CIV. P. 60, which provides “[a]ny party may intervene by

filing a pleading, subject to being stricken out by the court for sufficient cause on themotion of any party”).

119. Id.120. Id. at 65. The situation presented in this case is unlikely to arise again because it is

surprising the management company sought to intervene in the first place. Moreover, thetenant could have simply joined the management company as a party defendant if shethought its participation was desirable. Id..

121. Id. at 67. (citing and quoting TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(i),which states: “The filing or granting of a motion for leave to designate a person as a re-sponsible third party or a finding of fault against the person: (1) does not itself imposeliability on the person; and (2) may not be used in any other proceeding, on the basis of resjudicata, collateral estoppel, or any other legal theory, to impose liability on the person.”).

122. Id.


discretion in striking the intervention.123

VI. PLEADINGS

The Texas Supreme Court concluded that allegations within a sectionof a petition entitled “Avoidance of Defendants’ Limitations Defense”were sufficient under Rule 47(a) of the Texas Rules of Civil Procedure124

to provide notice of a trust’s affirmative claim for “acknowledgment of adebt” in Deroeck v. DHM Ventures, LLC.125 In this case, a trust acquiredan $8.5 million company debt guaranteed by two of the company’s princi-pals.126 After the company stopped making payments, the trust sued thedebtor company and guarantors.127 The parties filed cross motions forsummary judgment. In their motion, the debtors argued that the trust’sclaims were barred by limitations.128 In response, the trust argued andsubmitted evidence demonstrating that the company and guarantors hadacknowledged the “original debt” on multiple occasions within four yearsof the suit129 and, contemporaneously with its summary judgment re-sponse, the trust filed an amended petition making similar allegations re-garding acknowledgment of the debt in an “avoidance” section of thepleading.130 Even though the trust’s summary judgment response arguedthat acknowledgment “of the old debt gives rise to a new claim separatefrom the old debt,” its amended petition, like its original, did not explic-itly assert acknowledgment in the section of the pleading entitled “Causesof Action.”131 The debtors countered in reply that the trust had not prop-erly pleaded acknowledgment.132 Without explaining its reasoning, thetrial court denied the trust’s motion and granted the debtors’ cross mo-tion.133 The court of appeals affirmed, holding that the trust “had failedto plead acknowledgment as a cause of action because it had not done so‘specifically and clearly’ and in ‘plain and emphatic terms.’”134

Granting the trust’s petition for review, the supreme court reversed.135

Initially, the supreme court noted that the court of appeals’ holding that aclaim for “acknowledgment of a debt must be ‘specifically and clearly’

123. Id.124. TEX. R. CIV. P. 47(a) (providing a pleading setting forth “a claim for relief” shall

contain: “a short statement of the cause of action sufficient to give fair notice of the claiminvolved.”).

125. 556 S.W.3d 831, 833 (Tex. 2018) (per curiam).126. Id.127. Id.128. Id.129. Id. at 833–34.130. Id. at 834. The supreme court noted this “section of the [trust’s] amended petition

concluded: ‘For purposes of this avoidance pleading, the effect of these numerous acknowl-edgements is to create a new promise to pay the old debt evidenced by the Note and theloan documents.’” Id.

131. Id.132. Id.133. Id.134. Id.135. Id. at 836.


pleaded ‘in plain and emphatic terms’” conflicted with Rule 47(a). Specif-ically, the supreme court emphasized that Rule 47(a) requires only astatement sufficient to “give fair notice of the claim involved.”136 The“key inquiry,” according to the supreme court, was “whether the oppos-ing party ‘can ascertain from the pleading the nature and basic issues ofthe controversy and what testimony will be relevant.’”137 The supremecourt held that the trust’s amended petition, including the word “ac-knowledgment[ ]”138 and factual allegations relied on to demonstrate it,satisfied the requirements of Rule 47 because it provided fair notice tothe debtors of the trust’s claim.139 The supreme court rejected the debt-ors’ arguments that the placement of the allegations in the pleading af-fected the analysis, reasoning that regardless of the caption or location ofthe trust’s allegations, the amended petition provided notice to the debt-ors that the trust was asserting a claim based on their acknowledgementof the debt.140 Holding that is all that Rule 47 required141 and the court ofappeals erred in requiring more, the supreme court reversed and re-manded to the court of appeals to consider the parties’ otherarguments.142

In Wendt v. Sheth, the First Houston Court of Appeals affirmed a trialcourt’s determination that a supplemental petition did not relate back toa timely filed original petition because plaintiffs had not identified thecorrect defendant before limitations expired.143 This wrongful death casewas filed by the decedent’s estate and two daughters against a hospital,cardiologist, and two treating anesthesiologists.144 The plaintiffs timelyfiled suit, naming “Dr. Smith” as one of the anesthesiologists.145 Afterdiscovering a Dr. Milan Sheth rather than “Dr. Smith” was the properparty, plaintiffs filed a supplemental petition naming Sheth as a defen-dant about ten months after the two-year limitations period ran.146 Sheth

136. Id. at 835.137. Id.138. Id. The supreme court discussed Hanley v. Oil Capital, 171 S.W.2d 864, 866 (Tex.

1943), in which it held a plaintiff that never used the word “acknowledgment” in his peti-tion nevertheless provided “sufficient notice to the respondents that Hanley intended torely on the letters as a new promise in order to avoid the . . . statute of limitations and thatno further allegation in that regard was necessary.” Id. (noting it said then that “any otherholding would be contrary to both the letter and the spirit of Rule No. 47, Texas Rules ofCivil Procedure.”).

139. Id.140. Id. at 835–36.141. Id. at 836 (emphasizing its prior holdings that “pleading facts sufficient to put an

opponent on notice of a claim is sufficient, even if the claim is never actually named”).142. Id.143. Wendt v. Sheth, 556 S.W.3d 444, 446 (Tex. App.—Houston [1st Dist.] 2018, no

pet.).144. Id.145. Id.146. Id. at 447. The plaintiffs provided the notice required by Chapter 74 to the hospital

and “Dr. Smith” in December 2013. Id. at 447 n.1 (citing and quoting TEX. CIV. PRAC. &REM. CODE ANN. § 74.051(a)). However, the service address for Sheth in plaintiffs’ supple-mental petition was different from the address used for their Chapter 74 pre-suit noticesuch that Sheth did not receive pre-filing notice of the suit either. Id. at 447.


appeared and moved for summary judgment on the ground plaintiffs’claims were time-barred.147 In response, plaintiffs argued that they hadcorrectly identified Sheth in their timely, original petition but misspelledhis name because his handwriting was illegible in the medical records.148

The trial court granted Sheth summary judgment, and plaintiffsappealed.149

On appeal, the court of appeals rejected the plaintiffs’ misnomer argu-ment,150 holding that the supplemental petition therefore did not relateback to the date of the original petition.151 The court of appeals reasonedthat plaintiffs had not demonstrated a misnomer because there was noevidence Sheth was actually identified and had notice of the suit prior tothe expiration of limitations.152 In other words, plaintiffs had not shownthat the correct parties were involved in the suit even though there was amistake in the name used in the original petition; instead, plaintiffs hadpresented no evidence that Sheth had actual or constructive notice of thesuit before limitations ran.153 Further, the court of appeals found “theface of the original petition” demonstrated plaintiffs’ investigation ofproper parties was incomplete because they alleged, “on information andbelief,” that “Dr. Smith” was a Texas resident.154 The court of appealsexplained that plaintiffs’ filing of the original petition within the limita-tions period “was not sufficient to preserve all claims against all possibleparties” and “may not be sufficient to ensure that all necessary parties arejoined in the litigation.”155 Further, the court of appeals warned that “tothe extent possible, the investigation of potential parties needs to be com-pleted by the expiration of limitations, so that all defendants may betimely named and made part of the lawsuit.”156 The court of appealstherefore affirmed the trial court’s judgment dismissing plaintiffs’ claimsagainst Sheth.157

In Pacheco-Serrant v. Munoz, the El Paso Court of Appeals addressedthe interplay between the requirements of the Texas Medical LiabilityAct (TMLA) and the “fair notice” pleading standards of the Texas Rulesof Civil Procedure.158 In this medical malpractice case, the plaintiff al-leged in her original petition that the doctor “negligently performed” her

147. Id.148. Id.149. Id. at 448.150. Id. at 449. For the first time on appeal, plaintiffs also argued that Sheth’s illegible

handwriting in the medical records fraudulently concealed his identify, thereby tolling limi-tations. Id. at 448. The court of appeals held that plaintiffs waived this argument by notpresenting it to the trial court. Id.

151. Id. at 449.152. Id.153. Id.154. Id. at 450.155. Id.156. Id. (emphasis original).157. Id.158. Pacheco-Serrant v. Munoz, 555 S.W.3d 782, 785 (Tex. App.—El Paso 2018, no

pet.).


back surgery.159 After the trial court sustained the doctor’s objection toher first TMLA expert report, plaintiff timely submitted a curative expertreport containing opinions that the doctor was negligent both in operat-ing unnecessarily and in performance of the surgery itself.160 The doctorobjected to the curative report and moved to dismiss the action a secondtime, arguing the unnecessary surgery opinions in the report were outsidethe scope of the original petition’s negligent performance allegations, andthose opinions thus should not be considered in evaluating whether thecurative report satisfied the TMLA.161 Shortly before the hearing on thedoctor’s second motion to dismiss, plaintiff amended her petition to addallegations that the doctor “negligently performed” the surgery and his“negligence includes performing surgery which is not medically indi-cated.”162 At the hearing on the second motion, the doctor objected tothe plaintiff’s filing of the amended petition, arguing it unfairly raised acompletely new and separate cause of action.163 In response, plaintiffcontended that the allegations in her original petition were broad enoughto state both claims and she had filed the amended petition only “out ofan ‘abundance of caution’” given the doctor’s complaints.164 The trialcourt denied the motion to dismiss, found the curative report met theTMLA requirements, noted the doctor failed to “present any evidence tosupport the objection” to the amended petition “as required by Rule63,”165 and concluded the amendment did not “present a new cause ofaction.”166

On the doctor’s interlocutory appeal, the court of appeals affirmed thetrial court’s judgment in all respects.167 With regard to the pleading dis-pute, the court of appeals noted that the TMLA did not contain anypleading requirements, but instead provided, to the extent not inconsis-tent, that the Texas Rules of Civil Procedure supplied the applicablerules.168 As an initial matter, the court of appeals cited the line of Texascases providing that allegations a doctor performed an unnecessary sur-gery fell under the general negligence umbrella rather than the doctrineof informed consent.169 Further, the court of appeals observed that to theextent a plaintiff alleged more than one claim in a single cause of action, aTMLA expert report “need only address the pleaded liability theory”

159. Id.160. Id. at 787.161. Id. at 788.162. Id. at 789.163. Id.164. Id.165. Id.; TEX. R. CIV. P. 63 (allowing amendments of pleadings without leave of court if

made more than seven days before trial provided it is “at such time as not to operate as asurprise to the opposite party”).

166. Pacheco-Serrant, 555 S.W.3d at 790.167. Id. at 796.168. Id. at 793 (citing and quoting TEX. CIV. PRAC. & REM. CODE ANN. § 74.002(a),

which provides that in the event of a conflict between the procedural rules and the TMLAin a health care liability claim, the statute controls).

169. Id. (citations omitted).


rather than “each act of omission mentioned in the pleadings” supportingthat theory.170 The court of appeals emphasized that the “fair notice”pleading standards required only that the opposing party be able to ascer-tain from the pleading “the nature, basic issues, and type of evidence thatmight be relevant to the controversy.”171 Moreover, the court of appealssuggested that in absence of the doctor filing “special exceptions” to re-solve any doubt, the plaintiff’s original petition should be “liberally con-strued” to include both negligence claims.172 Applying these generalprinciples, finally, the court of appeals held that the trial court did notabuse its discretion in concluding the original petition encompassed bothnegligence claims, the plaintiff’s “amended petition did not allege a ‘new’cause of action,” and the curative expert report satisfied the TMLA if itsupported either negligence theory.173

VII. DISCOVERY

Addressing an issue of first impression, the Dallas Court of Appealsanalyzed whether a discovery subpoena constituted a “legal action” sub-ject to the Texas Citizens Participation Act (TCPA) in Dow Jones & Co.v. Highland Capital Management.174 In this case, Highland Capital serveda subpoena for deposition on written questions on Dow Jones to discoverwhether Highland Capital’s former funds manager violated an injunctionby sourcing Highland Capital’s confidential information published in aWall Street Journal article.175 Dow Jones moved to dismiss the subpoenaunder the TCPA, and filed an interlocutory appeal of the trial court’sdenial of the motion.176 The threshold issue, according to the court ofappeals, was whether a subpoena constitutes a “legal action” as definedby the TCPA.177 Dow Jones urged the court of appeals to find the sub-poena fell within the catch-all portion of the definition under the reason-ing applied by its sister courts of appeals in holding a petition under Rule202 of the Texas Rules of Civil Procedure qualified as a “legal action”under the TCPA.178 The court of appeals rejected Dow Jones’ argument,holding that the TCPA did not apply to third-party discovery subpoenas

170. Id. The court of appeals also noted that the “TMLA does not define the term‘cause of action,’ [but] the generally accepted meaning of that phrase in civil cases refers tothe ‘fact or facts entitling one to institute and maintain an action, which must be allegedand proved in order to obtain relief.’” Id. at 794.

171. Id. at 793.172. Id. at 794 (discussing Roark v. Allen, 633 S.W.2d 804, 809–10 (Tex. 1982)).173. Id.174. 564 S.W.3d 852, 853 (Tex. App.—Dallas 2018, pet. denied).175. Id. at 854.176. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 27.008 (providing for expedited

appeals of denials of motions to dismiss under section 27.003 of the TCPA).177. Dow Jones, 564 S.W.3d at 855 (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(a) definition of “legal action” as “a lawsuit, cause of action, petition, complaint,cross-claim, or counterclaim or any other judicial pleading or filing that requests legal orequitable relief”) (emphasis original).

178. Id. at 856 (citing DeAngelis v. Protective Parents Coalition, 556 S.W.3d 836 (Tex.App.—Fort Worth 2018, no pet.) (addressed elsewhere in this Survey); In re Elliot, 504S.W.3d 455 (2016)). These cases address Rule 202 petitions under the TCPA. Id.


for several reasons.179

First, the court of appeals noted that unlike Rule 202, which “functionsas a precursor and potential gateway to plenary merits litigation,” thesubpoena at issue did not anticipate a potential suit against Dow Jones.Instead, the subpoena involved “post-judgment, third-party discovery”that plainly did not fit within the definition’s first part of “lawsuit, causeof action, petition, complaint, cross-claim or counterclaim.”180 Second,the court of appeals observed that a subpoena is issued, not filed, anddoes not seek legal or equitable relief in the traditional sense such that italso does not fall within the catch-all portion of the legal claim defini-tion.181 Third, the court of appeals found the TCPA’s burden-shifting mo-tion to dismiss framework could not be applied to a subpoena because itwas not a “substantive claim” subject to viability testing.182 Fourth, thecourt of appeals applied the ejusdem generis doctrine, reasoning that the“catch-all portion” must be limited to “procedural vehicle[s] for the vin-dication of a legal claim” like those specified in the definition’s first part,and third-party discovery subpoenas could not be so characterized.183 Fi-nally, the court of appeals concluded that construing the TCPA to applyto subpoenas, thereby allowing a “free standing dismissal procedure withits attendant stay, appeal, and an award of attorney’s fees every time dis-covery implicates” third-party speech, “would cause the judicial system togrind to a halt” contrary to the TCPA’s intended purpose to “reduce mer-itless litigation.”184

The discoverability of an independent certified court reporter’s audiorecording of a telephonic hearing, which contained unheard conversa-tions that were not part of the transcribed record, was at issue in In reDaugherty.185 In this multifaceted dispute between an employee and hisformer employer, the employee’s counsel engaged a court reporter totranscribe the hearing from its office after the trial court requested a tele-phonic hearing on the former employer’s emergency motion and advisedthe official reporter may not be available to make a record.186 Afterlearning that employee’s counsel had engaged the court reporter, the em-ployer requested and obtained a certified transcript of the hearing fromthe court reporter, but also “requested a copy of the entire audio record-ing made in connection with the telephonic hearing to check the accuracyof the transcript.”187 The employee’s attorneys apparently did not realize

179. Id.180. Id.181. Id. (discussing the dictionary definition of “relief” and reasoning that “granting

relief changes the relationship between the parties, and the court is required to enforce therelief granted” but “[a]llowing third-party discovery does not change the relationship be-tween the parties and is not relief as used in this context”).

182. Id. at 857 (citing and quoting TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.002,.005(a), .006(a)).

183. Id. at 857–58.184. Id. at 858.185. 558 S.W.3d 272, 276 (Tex. App.—Dallas 2018, no pet.).186. Id. at 275–76.187. Id. at 275.


the court reporter’s stenographic program began recording audio severalminutes before the hearing started, which likely captured “unheard state-ments” by employee’s counsel.188 When the employer subpoenaed theaudio recording from the court reporter, the employee moved to quashand for protection, arguing that the recording contained core work prod-uct conversations between counsel before, during, and after the hearingthat were, in any event, irrelevant to any of the pending actions.189 Afterthe court reporter’s unsworn testimony at the hearing on the employee’smotion to quash, the trial court ordered the court reporting firm to pro-duce the portion of the recording “from the moment that the . . . otherside basically gets on the phone to the moment they get off.”190 The em-ployee sought mandamus relief from the trial court’s order.191

On mandamus, the court of appeals began by considering the em-ployer’s stated need for the audio recording “(1) to verify the accuracy ofthe certified transcript and (2) to obtain other relevant information” aug-menting the official hearing record or for general discovery purposes.192

The court of appeals rejected the former justification out of hand, notingthat the employer had not shown there was any inaccuracy in the tran-script or “otherwise establish[ed] circumstances justifying compelling theproduction of any audio recording that may exist.”193 With regard to thelatter justification, the court of appeals considered whether the “unheardstatements” were “nevertheless part of the ‘hearing’ or subject to discov-ery on account of their being overheard by a court reporter or capturedby her recording device.”194 First, the court of appeals held that the “un-heard statements” were not part of the official trial court record of thehearing because they were not heard by the trial court judge and, thus,“could not possibly serve as the basis for any decisions he made.”195 Ac-cordingly, nothing on the audio recording could or would augment theofficial record of the hearing, and the court of appeals next turned to thequestion of the recording’s general discoverability.196

In considering the question, the court of appeals noted that the presid-

188. Id. These statements were not heard by the trial court judge or the employer’scounsel either because they were made by employee’s counsel before the hearing began orwhile the telephone in employee’s counsel’s office was muted during the hearing. Id. at275–76. These statements, which the court of appeals defined as “unheard statements,”were also not included in the court reporter’s certified transcript of the hearing. Id. at 276.

189. Id. at 275.190. Id. at 276.191. Id.192. Id.193. Id. at 276–77 (noting that “[a]udiotapes that back up the court reporter’s steno-

graphic record are not judicial records, and thus parties have no right to access them, un-less some reason is shown to distrust the accuracy of the completed stenographictranscript”).

194. Id. at 276.195. Id. at 277 (reasoning that “the purpose of the reporter’s record is to preserve the

basis for the judge’s decision”).196. Id. at 278 (citing TEX. R. CIV. P. 192.3(a) for the general scope of discovery).


ing judge may not testify at trial,197 and like the presiding judge, the courtreporter serves as “an integral part of the judicial process, recording aproceeding involving the parties and the judge.”198 Accordingly, the courtof appeals reasoned that court reporters “should be afforded the sameprotections from inquiry that a juror whose deliberations—outside of sus-picion of corrupting outside influence—are afforded, or the protectionsafforded a law clerk who discusses the bases of a trial judge’s decisionswith him.”199 Given this, the court of appeals concluded that subjectingcourt reporters, which “by necessity, frequently . . . overhear[ ] statementsfrom lawyers and judges alike,” to discovery processes to obtain suchstatements “would inexorably invade the judicial process.”200 Further, thecourt of appeals noted that subjecting court reporters to discovery mayresult in violations of their ethical obligations.201 For all these reasons,the court of appeals held that the audio recording was not discovera-ble,202 the trial court therefore abused its discretion in ordering produc-tion, and mandamus relief was appropriate.203

VIII. DISMISSAL

In Deangelis v. Protective Parents Coalition,204 the Fort Worth Court ofAppeals followed several other courts of appeals in holding that theTCPA205 applies to a petition for pre-suit depositions under Rule 202 ofthe Texas Rules of Civil Procedure.206 The court of appeals then ad-dressed how the TCPA’s burden-shifting motion to dismiss frameworkapplied in the Rule 202 context.207 In particular, the court of appeals con-sidered what the non-moving party was required to establish to show aprima facia case for “each essential element of the claim in question” toavoid dismissal under the TCPA.208 With respect to a Rule 202 petition,the question was whether the non-movant was required to establish factsthat would allow pre-suit discovery under Rule 202 or facts regarding the

197. Id. (citing TEX. R. EVID. 605 and noting a presiding judge testifying as a witnesshas been held to violate “due process rights by creating a constitutionally intolerable ap-pearance of partiality”).

198. Id. (citing and discussing Halsey v. Dallas Cty., 68 S.W.3d 81, 85 (Tex. App.—Dallas 2001), rev’d on other grounds 87 S.W.3d 552 (Tex. 2002)).

199. Id. at 278–79 (citing TEX. R. CIV. P. 327(b); TEX. R. EVID. 606(b)).200. Id. at 279.201. Id. (citing An Attorney Requests a Copy of a Reporter’s Backup Audio Media,

NCRA COPE—Op. (2014), “cautioning court reporters that complying with order to pro-duce audio backup tapes may violate National Court Reporters Association’s code of pro-fessional ethics, which requires reporter to preserve confidentiality and ensure security ofinformation entrusted to reporter”).

202. Id. (the court of appeals noted its analysis may change if the audio recording hadnot been made by a “licensed court reporter”).

203. Id. at 279–80.204. 556 S.W.3d 836, 848 (Tex. App.—Fort Worth 2018, no pet.).205. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–011.206. Deangelis, 556 S.W.3d at 849.207. Id. at 853–58.208. Id. at 853 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)).


potential claim or claims the discovery sought to investigate.209 Relyingon the plain language of Rule 202, the court of appeals held that since aRule 202 petitioner often seeks to investigate a potential claim or suitbecause it is unclear if a viable cause of action exists, a non-movant mustestablish the elements for obtaining a pre-suit deposition in order toavoid a dismissal.210 Further, the court of appeals held that the Rule 202petitioners had not established “by clear and specific evidence” that theywere entitled to pre-suit discovery211 and therefore affirmed dismissal oftheir case.212

Another court of appeals addressed an issue of first impression underthe TCPA in Roach v. Ingram, considering whether government officialssued in their official capacity were entitled to invoke the TCPA in re-sponse to a lawsuit involving ultra vires claims.213 In this case, the non-moving party did not dispute that the government officials satisfied therequirements of the TCPA, but rather argued on public policy groundsthat the application of the TCPA to ultra vires claims would inhibit suitsseeking to make public officials perform their duties.214 In support of theargument, the non-movant noted that California had a statute similar tothe TCPA, which exempted certain lawsuits brought in the public interestfrom its application.215 The court of appeals rejected the argument, hold-ing the TCPA did not contain such an exemption, and pursuant to itsclear terms was applicable.216 Thus, the court of appeals held that the trialcourt “was required to dismiss” the non-movants’ claims against the gov-ernment officials.217

In another TCPA case in this Survey period, the Dallas Court of Ap-peals held that a trial court “had no authority to grant the TCPA motionto dismiss outside the time allowed by statute,”218 reversed the operationof law denial of the motion, rendered judgment dismissing the plaintiff’sclaims under the TCPA, and remanded to the trial court for considerationof the fee award to the defendant.219 The case involved a suit against adefendant for statements she posted on a website, “Real/scam.com – Is itor isn’t it? You decide,” about the plaintiff’s youth sports services busi-

209. Id.210. Id. at 854.211. Id.212. Id. at 860.213. Roach v. Ingram, 557 S.W.3d 203, 218 (Tex. App.—Houston [14th Dist.] 2018, pet.

denied).214. Id. at 220.215. Id.216. Id.217. Id. at 221.218. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a) (providing the “court must rule

on a motion under Section 27.003 not later than the 30th day following the date of thehearing on the motion”).

219. Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 WL 6273411, at *1, *8 (Tex.App.—Dallas Nov. 30, 2018, no pet.) (mem. op.). An award of “court costs, attorney’s fees,expenses, and sanctions” to the party prevailing on a TCPA motion to dismiss ismandatory. Id. at *8 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)).


ness.220 The defendant moved to dismiss the petition under the TCPA.On the day of the hearing, plaintiff filed a second amended petition, as-serting claims for conspiracy, tortious interference with contract and pro-spective contract based on the nearly identical factual allegations and, atthe hearing, “nonsuit[ed] or dismiss[ed]” the claims for “defamation, li-bel, and slander” subject to the motion to dismiss.221 The defendant fileda second TCPA motion to dismiss the second amended petition. Al-though the trial court held a hearing on the second motion, it did not rulewithin thirty days afterwards resulting in denial of the motion by opera-tion of law. The defendant appealed the denial, and over thirty days later,the “trial court signed an order granting” the second motion.222

On review, the court of appeals followed prior panel decisions holdingthat a trial court cannot grant a “TCPA motion to dismiss not later thanthe 30th day following the date of the hearing”223 even if the ruling ismade before expiration of the trial court’s plenary power.224 Accordingly,the court of appeals held that the trial court’s order granting the secondmotion was ineffective.225 Further, the court of appeals held that the trialcourt erred by denying the second motion to dismiss by operation of lawbecause (1) the defendant’s statements were protected speech about theplaintiff’s goods and services in the marketplace,226 and (2) defendantfailed to establish “by clear and convincing evidence a prima facie casefor each essential element of” the claims in his second amended peti-tion.227 The court of appeals thus dismissed plaintiff’s claims under theTCPA and remanded to the trial court for an award of attorneys’ fees andcosts to the defendant.228

Another court of appeals addressed several issues of first impressionunder Chapter 128 of the Civil Practice and Remedies Code relating tothe timely provision of an expert report in a suit against a sport shootingrange.229 First, the Fort Worth Court of Appeals determined that, likeseveral other statutes requiring an early expert report, Section 128.053

220. Id. at *1.221. Id.222. Id. at *2.223. Id. (citing Dallas Morning News v. Mapp, No. 05-14-00848-CV, 2015 WL 3932868,

at *3 (Tex. App.—Dallas June 26, 2015, no pet.); Kim v. Manchac, No. 05-17-00406-CV,2018 WL 564004, at *1 (Tex. App.—Dallas Jan. 26, 2018, no pet.)).

224. Id.225. Id.226. Id. at *4 (determining whether the claim involved exercise of free speech and dis-

cussing TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001, 27.003(a), 27.005(b) in concludingthat defendant’s statements “concerning [plaintiff’s] services in the marketplace”qualified).

227. Id. at *5 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) and findingplaintiff failed to “prove all essential elements of his claims by clear and convincing evi-dence” after review of each).

228. Id. at *8.229. Alpine Indust., Inc. v. Whitlock, 554 S.W.3d 174, 177 (Tex. App.—Fort Worth

2018, pet. filed). Chapter 128 provides for various limitations on rights to bring actions andrecover damages against sport shooting ranges and firearms or ammunition manufacturers,trade associations, or sellers. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 128.001–011.


required the plaintiff to provide an expert report ninety days after thedate the original petition was filed, and that a generic docket control or-der setting an expert deadline could not extend that date.230 Rather, onlya specific order extending the time for the report was sufficient.231 Sec-ond, the court of appeals determined that the requirement of a timelyexpert report did not apply to the employee defendants since they did notfall within the definition of “sport shooting range” in Chapter 128.232 Spe-cifically, since “owners and operators” of the range or “owners of the realproperty” on which the range sits did not include “employees,” the courtof appeals held that Section 128.053 did not require an expert report forclaims against the employees.233

The Dallas Court of Appeals affirmed the trial court’s order striking ahomeowners association’s pleadings based on its attorney’s lack of au-thority under Rule 12 of the Texas Rules of Civil Procedure in CandleMeadow Homeowners Association v. Jackson.234 In this case, an attorneyhired by a new board of the homeowners association filed suit againstseveral former board members suspected of misusing associationfunds.235 The former board members filed a Rule 12 motion, supportedwith evidence that the association could only act through its board, andthe board had not voted to authorize the lawsuit.236 At the hearing on themotion, there was conflicting live and deposition testimony aboutwhether the board had voted for the attorney it hired to investigate po-tential claims to actually file the lawsuit; while the chairman testified thatsuch a vote occurred, other board members testified that they did notvote, and there were no meeting agendas or minutes reflecting any voteon the issue took place.237 There was also evidence that after the attorneyfiled suit, the board received a copy of the petition and status updates,but “did not complain” about the lack of an authorizing vote or direct theattorney to dismiss the case.238 The trial court granted the former mem-bers’ Rule 12 motion and struck the association’s pleadings, and the asso-ciation appealed.239

On appeal, the court of appeals began by outlining the procedureunder Rule 12, noting after a motion is filed, the “challenged attorney hasthe burden of proof” to show his or her authority to represent the cli-

230. Alpine, 554 S.W.3d at 185–87.231. Id.232. Id. at 188 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 128.001(b)(2)).233. Id. at 187–88.234. No. 05-17-01227, 2018 WL 6187616, at *1 (Tex. App.—Dallas Nov. 27, 2018, no

pet.). Rule 12 provides that any “party in a suit or proceeding pending in a court of thisstate may, by sworn written motion stating that he believes the suit or proceeding is beingprosecuted or defended without authority, cause the attorney to be cited to appear beforethe court and show his authority to act.” TEX. R. CIV. P. 12.

235. Candle, 2018 WL 6187616, at *1–2.236. Id. at *2.237. Id.238. Id.239. Id.


ent.240 If the attorney’s proof falls short, “the trial court is required to (1)bar the challenged attorney from appearing in the case and (2) strike thepleadings if an authorized person does not appear.”241 The associationargued the trial court erred by granting the motion because the chair-man’s testimony and email directing the attorney to file the lawsuit estab-lished the attorney’s authority. The court of appeals disagreed, notingthere was no evidence that the board delegated the decision to the chair-man, and a majority of the members testified the board did not vote,which evidence the trial court necessarily credited in granting the mo-tion.242 The court of appeals, therefore, found no abuse of discretion inthe trial court’s ruling that the attorney had not met his burden to showhis initial authority to file suit.243 The court of appeals also rejected theassociation’s claim that the board ratified the chairman’s conduct in au-thorizing the attorney to file suit, reasoning that the only means of boardratification would be by vote and there was also no evidence of a voteexpressly ratifying the chairman’s conduct.244 Accordingly, the court ofappeals affirmed the trial court’s judgment striking the association’spleadings under Rule 12.245

IX. SUMMARY JUDGMENT

The Texas Supreme Court addressed several issues regarding summaryjudgment practice in this Survey period. In Lujan v. Navistar, the su-preme court agreed with federal courts and most Texas appellate courtsin holding that the sham affidavit rule is consistent with Texas Rule ofCivil Procedure 166a.246 The sham affidavit rule provides that if a partysubmits an affidavit that, without explanation, conflicts with the affiant’sprior sworn testimony or statement, a trial court may disregard the affida-vit when ruling on a motion for summary judgment.247 In adopting thesham affidavit rule, the supreme court observed that Rule 166a(c) pro-vides that summary judgment may be granted only when “no ‘genuine’fact issue exists.”248 Focusing on the word “genuine,” the supreme courtreasoned that the rule is consistent with a trial court’s authority to deter-mine whether a fact set forth in an affidavit is genuine if it conflicts withprior testimony and there is no adequate explanation for the conflict.249

240. Id. at *3 (citing Angelina Cty. v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964)). Thetrial court must hold a hearing on the motion to show authority and “consider[ ] andweigh[ ] the evidence presented” bearing on the attorney’s authority, and its factual deter-minations made in determining a Rule 12 motion are entitled to deference on appeal. Id.

241. Id.242. Id.243. Id. at *4.244. Id. at *5 (the court of appeals noted further there was no evidence that the board

had been “apprised of all the material facts pertaining to the lawsuit” to establish a viableratification theory).

245. Id.246. Lujan v. Navistar, 55 S.W.3d 79, 91 (Tex. 2018).247. Id. at 82.248. Id. at 86 (citing TEX. R. CIV. P. 166a(c)).249. Id.


The supreme court rejected the argument that the Texas and federal sum-mary judgment rules differed such that adopting the federal sham affida-vit rule was inappropriate. Acknowledging that Rule 166a(h) providesthat if an affidavit is made in bad faith the trial court may sanction theaffiant, while Rule 56(f) of the Federal Rules of Civil Procedure providesfor other, different sanctions,250 the supreme court held this differencewas not meaningful because the basis for the sham affidavit rule iswhether an affidavit creates a “genuine” fact issue for summary judgmentpurposes, and not what sanctions may flow from a bad faith affidavit.251

Finally, the supreme court held that while the granting of summary judg-ment is generally reviewed de novo, review of a trial court’s decision toignore an affidavit under the sham affidavit rule is reviewed for an abuseof discretion.252 The supreme court reasoned the more deferential stan-dard is warranted because of the discretion given to the trial court toanalyze the differences between the affidavit and other sworn testimonyand evaluate any explanation given by the affiant for discrepancies.253

In Seim v. Allstate Texas Lloyds, the Texas Supreme Court addressedthe difference between an evidentiary defect as to form and substance,resolved a split among the courts of appeals,254 and held that parties mustobtain a ruling on the record for form objections or they are waived.255 Inthe trial court, the plaintiff submitted a summary judgment response affi-davit referring to unattached expert reports that attested only to the truthof the statements in the affidavit rather than the statements in the re-ports.256 The defendant objected to the affidavit on that basis and others,but failed to obtain a ruling on its objections. The trial court granted thedefendant’s motion for summary judgment,257 and the court of appealsaffirmed, explicitly holding in a substitute opinion that the defendant pre-served its objections to the affidavit by “complaining [of] hearsay, re-questing that it be stricken, and challenging” the lack of notarysignature.258

The supreme court reversed.259 Initially, the supreme court noted the

250. Id. at 88–89.251. Id. at 89.252. Id. at 84.253. Id. at 85.254. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164–66 (Tex. 2018). The supreme

court noted the Second Court of Appeals, on the one hand, and the Fourth and FourteenthCourt of Appeals, on the other, had split on whether trial courts must expressly rule on aform objection to preserve error. Id. at 164–65 (citing Blum v. Julian, 977 S.W.2d 819 (Tex.App—Fort Worth 1998, no pet.); Frazier v. Yu, 987 S.W.2d 607 (Tex. App.—Fort Worth1999, pet. denied) (both Second Court of Appeals cases held no express ruling required);Bates v. Pecos Cty., 546 S.W.3d 277, 286 (Tex. App.—El Paso 2017, no pet.); Well Sols.,Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio 2000, no pet.) (both Fourthand Fourteenth Court of Appeals cases holding the opposite)). The supreme court heldthat “the Fourth and Fourteenth courts have it right.” Id. at 166.

255. Id. at 166.256. Id. at 163.257. Id.258. Id.259. Id. at 166.


same evidentiary rules applied at trial and summary judgment proceed-ings, as do “the rules of error preservation.”260 For summary judgmentevidence in particular, the supreme court held that form objections alonewere not enough to preserve error, and any evidence defective in form“remains part of the summary[-]judgment proof unless an order sus-taining the objection is reduced to writing, signed, and entered of re-cord.”261 Further, the supreme court explained that language in the trialcourt’s summary judgment order stating it “reviewed all competent sum-mary-judgment evidence” could not be construed as an explicit or im-plicit ruling on the defendant’s objections.262 Accordingly, the court ofappeals’ decision that the summary judgment evidence was incompetentcould only stand if the disputed evidence contained substantive ratherthan form defects.263 Addressing that question, the supreme court heldthat the complained of defects in the plaintiff’s summary judgment evi-dence were defects in form, citing its prior decision addressing the “dis-tinction between substantive and formal defects.”264 Accordingly, thesupreme court held that the court of appeals erred in disregarding theplaintiff’s evidence and remanded the case to the court of appeals forreconsideration of the summary judgment.265

In Tabe v. Texas Inpatient Consultants, LLLP, the First Houston Courtof Appeals addressed whether the filing of an affidavit alone is a suffi-cient response to a motion for summary judgment under Rule 166a.266 Inthis case, a medical service provider sued a physician claiming the physi-cian had breached an employment contract by refusing to provide ser-vices.267 The medical service provider moved for summary judgment. Inresponse, the physician submitted an affidavit stating a condition prece-dent to the contract’s enforceability had not occurred because he had notreceived credentialing at the hospitals.268 The trial court granted sum-mary judgment, and the physician appealed.269 The court of appeals re-versed, rejecting the medical service provider’s argument that thephysician’s affidavit should not be considered without a separate writtenresponse to the summary judgment motion.270 In reversing the trial

260. Id. at 163–64.261. Id. at 164 (quoting Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex.

App.—Dallas 2003, no pet.) (alteration in original).262. Id. at 165 (alteration in original) (criticizing Frazier v. Yu, 987 S.W.2d 607 (Tex.

App.—Fort Worth 1999, pet. denied), which held that such language was a ruling on theobjections to the summary judgment evidence).

263. Id. at 166.264. Id. (citing Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 318

(Tex. 2012), in which the supreme court held that an affidavit’s defects, including lack or ajurat or other showing it was sworn, making it “no affidavit it all,” were form rather thansubstantive defects).

265. Id.266. Tabe v. Texas Inpatient Consultants, LLLP, 555 S.W.3d 382, 387 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied).267. Id. at 383.268. Id. at 387.269. Id. at 383–34.270. Id. at 387.


court’s judgment, the court of appeals noted that Rule 166a(c) allows aparty to file either an affidavit or a written response but does not requireboth.271 Further, the court of appeals reasoned that the physician’s affida-vit, once considered, raised the failure of a condition precedent and thusdefeated the medical service provider’s summary judgment motion.272

X. JURY CHARGE

The Texas Supreme Court addressed whether failure to object to a juryquestion waived a party’s ability to challenge the jury’s answer in Musal-lam v. Ali,273 holding that neither the failure to object nor the request tosubmit a jury question forfeits a party’s right to “later challenge submis-sion of the question or the jury’s answer to it.”274 This case involved adispute over the sale of a wholesale candy and tobacco distributorship.The day after closing of the sales agreement, the seller sued the buyerclaiming the sales agreement was an unenforceable agreement-to-agree.The buyer in turn counterclaimed for damages resulting from the seller’sbreach of the agreement.275 The trial court, at the seller’s request andover the buyer’s objection, submitted questions and instructions to thejury asking whether the buyer and seller had reached an agreement forsale of the business.276 The jury answered “yes,” found the seller hadbreached the sales agreement, and awarded the buyer $904,924 in lostprofit damages.277 After the trial court rendered judgment on the verdict,the seller filed a “Motion for New Trial and a Motion for Judgment Not-withstanding the Verdict, or in the Alternative, Motion to Disregard,”arguing that the jury’s answer to Question 1 should be disregarded be-cause (1) the enforceability of the sales agreement was a question of law,and (2) the evidence showed material terms, such as the purchase price,

271. Id. (citing TEX. R. CIV. P. 166a(c) providing the non-movant “not later than sevendays prior to the day of the hearing may file and serve opposing affidavits or other writtenresponse”).

272. Id. at 389.273. 560 S.W.3d 636, 639 (Tex. 2018).274. Id. at 640.275. Id. at 638.276. Id. The trial court submitted the following:

Question No. 1

Did [seller and buyer] agree to the sale and transfer of [business] in [the salesagreement]?

In deciding whether the parties reached an agreement, you may considerwhat they said and did in light of the surrounding circumstances, includingany earlier course of dealing. You may not consider the parties’ unexpressedthoughts or intentions.

If [seller and buyer] agreed to other essential terms but failed to specifyprice, it is presumed a reasonable price was intended.

Answer “Yes” or “No”Id.

277. Id.


were not agreed on.278 The trial court denied the seller’s motions.279

On appeal, the court of appeals framed the seller’s argument as: “[Thejury’s] finding [on Question No. 1] should be disregarded as immaterialbecause whether a particular agreement is an enforceable contract is aquestion of law.”280 The court of appeals refused to address this argu-ment, instead agreeing with the buyer that the seller failed to preserveany error in the trial court’s submission of Question 1 by failing to ob-ject.281 The supreme court reversed, holding the seller’s failure to object“did not preclude him from later arguing either that the jury’s finding wasnot supported by the evidence, or that as a matter of law the [sales agree-ment] was an unenforceable agreement to agree.”282

Quoting Texas Rule of Civil Procedure 279,283 the supreme court firstexplained that while a no evidence issue may be preserved by objecting tosubmission of the question, “a motion for judgment notwithstanding theverdict or motion to disregard the jury’s answer will also preserve er-ror.”284 Thus, the supreme court held the seller did not forfeit the right tochallenge the sufficiency of the evidence supporting Question 1 by re-questing it.285 Second, the supreme court observed that trial courts mayalways “disregard a jury finding if the finding is immaterial,” and a com-plaint about materiality “is not a jury charge complaint.”286 Accordingly,the supreme court held that the seller did not waive his right to challengethe materiality of Question 1 by failing to object to its submission.287 Forboth reasons, the supreme court remanded to the court of appeals to ad-dress the seller’s challenges to Question 1.288

XI. DISQUALIFICATION OF COUNSEL

The Dallas Court of Appeals again directed the trial court to addresswhether Bickel & Brewer should be disqualified under the In re Mea-dor289 standard over three years after the Texas Supreme Court’s opin-

278. Id. at 638–39.279. Id. at 639.280. Id. (quotation of court of appeals with punctuation original).281. Id.282. Id.283. Id. (citing TEX. R. CIV. P. 279, providing that “[a] claim that the evidence was

legally or factually insufficient to warrant the submission of any question may be made forthe first time after verdict, regardless of whether the submission of such question was madeby the complainant”).

284. Id.285. Id. (citing Simon v. Henrichson, 394 S.W.2d 249, 257 (Tex. Civ. App.—Corpus

Christi 1965, writ ref’d n.r.e.)).286. Id. at 640 (citing BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402

(Tex. 2017)).287. Id.288. Id.289. 968 S.W.2d 346, 351–52 (Tex. 1998) (listing factors to be considered when disquali-

fication issue involves attorney’s receipt of adversary’s privileged and confidential informa-tion from a former employee fact witness).


ion290 vacating the trial court’s original disqualification order for applyingthe incorrect standard.291 After describing the prior mandamus proceed-ings on the disqualification issue, the court of appeals addressed whetherthe trial court abused its discretion in denying the relator’s motion toreconsider Bickel & Brewer’s disqualification under In re Meador “as un-timely, dilatory in nature, and/or waived.”292 The court of appeals heldthat the trial court had abused its discretion and ordered it to determinethe In re Meador-based disqualification motion on the merits withinthirty days of the opinion.293

With regard to waiver, first, the court of appeals reasoned that the rela-tor could not have waived its earlier In re Meador disqualification argu-ment by not reasserting it until after the supreme court’s In re RSRopinion because the trial court had granted disqualification under In reAmerican Home Products294 without addressing In re Meador, and “eventhe [court of appeals] thought Meador was inapplicable until the supremecourt found otherwise.”295 Second, the court of appeals found that therecord did not show the reconsideration motion was untimely or other-wise “dilatory in nature.”296 Instead, the court of appeals noted that therelator timely moved for reconsideration under In re Meador, but thetrial court refused to address the merits of the motion.297 Further, thecourt of appeals observed that the relator’s reconsideration motion waspending for eighteen months without action by the trial court, suggestingthat the “purported delay lies with the trial court” not the relator.298 Fi-nally, the court of appeals explained the trial court’s failure to address Inre Meador disqualification after the supreme court’s In re RSR opinion,coupled with “deeming the motion for reconsideration untimely, dilatory,and waived,” constituted an abuse of discretion for which mandamusshould issue.299

290. In re RSR Corp., 475 S.W.3d 775, 782 (Tex. 2015) (holding that In re AmericanHome Prods., 985 S.W.2d 68, 74–75 (Tex. 1998), rule for non-lawyers directly supervised byattorneys retained to assist in litigation did not apply to Bickel & Brewer’s conduct inobtaining discovery from fact witness that was adversary’s former employee).

291. In re Inppamet, Ltd., 566 S.W.3d 1, 6 (Tex. App.—Dallas 2018) (mem. op.), mand.granted sub nom., In re RSR Corp., 568 S.W.3d 663 (Tex. 2019) (per curiam).

292. Id. at 3.293. Id. at 6.294. In re Am. Home Prods. Corp., 985 S.W.2d 68, 71 (holding law firm that hired its

opposing counsel’s former legal assistant must be disqualified unless hiring law firm hasscreening measures in place because of presumption paralegals and legal assistants whohave worked on case have received confidences and will share those confidences with newemployer).

295. Inppamet, 566 S.W.3d at 5.296. Id.297. Id. (noting that the trial court vacated the prior disqualification order on January

11, 2016; and by February 5, 2016, the relator had moved to compel discovery relevant tothe In re Meador analysis and filed the reconsideration motion on March 25, 2016; further,the court of appeals noted that the trial court’s finding the request for additional discoverywas untimely “does not mean the motion for reconsideration under Meador was alsountimely”).

298. Id.299. Id.


XII. JUDGE DISQUALIFICATION

In AVPM Corp. v. Childers, the Dallas Court of Appeals reaffirmed inemphatic fashion that a Texas judge’s “mere receipt of campaign funds, inand of itself, without an indication of communication about, or coordina-tion of, the handling of a case, is not a basis for recusal.”300 In this case,the court of appeals held that the plaintiff appellant’s motion to recusetwo justices on the panel301 based on campaign contributions publicly dis-closed seven months prior to the recusal request was not only untimely,but substantively frivolous, and merited referral of attorney John L.“Lin” McCraw III to the State Bar’s Office of the General Counsel forpossible disciplinary action.302

First, the court of appeals noted that the justices had disclosed the com-plained of contributions well before the case was submitted to the panel,the panel issued its opinion, and plaintiff appellant sought and failed toobtain a rehearing. Thus, the court of appeals held the recusal motion wasuntimely, observing that failure to seek recusal “until a judgment is ren-dered is indicative of judge shopping, with a litigant waiting to see if he isto prevail and only after failing, declaring a mulligan.”303 Second, thecourt of appeals found that “stripped to its essentials, McCraw seeks toexploit the very existence of an elected judiciary as a basis for recusal.”304

The appellate court noted that, regardless of judges’ preferences,305 Texashas for over 100 years selected its judiciary by popular election, whichnecessarily requires judges to finance their campaigns. Given this reality,the court of appeals noted settled law that a judge’s acceptance of cam-paign contributions, without more, is not a basis for recusal and does not“create even the appearance of impropriety.”306 On this point, the courtof appeals made clear that McCraw had not even asserted the campaigncontributions “had any input on the outcome of this case” and rejectedany implication that contributions in the amounts involved,307 “which

300. AVPM Corp. v. Childers, No. 05-17-00372, 2018 WL 4870931, at *2 (Tex. App.—Dallas Oct. 9, 2018, pet. filed).

301. Id. at *1. The court of appeals based its decision on Rule of Appellate Procedure16, but noted the governing standards were essentially the same as Texas Rule of CivilProcedure 18b regarding recusal of trial judges. Id. The recusal motion was decided by allmembers of the Dallas Court of Appeals, with “Justice Frances removing herself fromconsideration of the motion with respect to herself and Justice Stoddart removing himselffrom consideration with respect to himself.” Id.

302. Id. at *1–2.303. Id. at *2.304. Id.305. Id. at *2 n.2 (citing interviews of former Texas justices “lamenting popular election

and concomitant fund-raising requirement”).306. Id. at *2.307. Id. The opinion is silent on the amounts at issue, but other sources report that the

recusal motion cited each justice’s receipt of “a $2,000 donation from the tort reform groupTexans for Lawsuit Reform PAC, and a $1,000 donation from the Apartment Associationof Greater Dallas PAC.” John Council, Complaining About Justices’ Campaign Contribu-tions Gets Lawyer Referred for Bar Discipline, TEX. L. (Oct. 10, 2018), www.law.com/texaslawyer/2018/10/10/complaining-about-justices-campaign-contributions-gets-lawyer-re-ferred-for-bar-discipline/ [https://perma.cc/L8L5-78ZT]. It is unlikely such de minimus


were well in line with amounts received from all the other contributors,and constituted only a small percentage of the total amounts received,”could have impacted the justices’ decision on the merits.308 Accordingly,the court of appeals found the recusal motion “substantively frivolous”and denied it.309

With respect to the disciplinary referral, the court of appeals found thatMcCraw took “his disappointment with the outcome of this case to aninappropriate level by attacking the integrity of this Court.”310 Specifi-cally, the court of appeals cited statements in McCraw’s recusal motion311

manifesting his “intention to accuse this Court of a corrupt purpose inassigning and deciding this case,” including assertions that (1) only thetwo justices received “coordinated [PAC] gifts”; (2) case assignment forthe court of appeals, which is “supposed to be random,” “occurs behind aveil of secrecy”; and (3) the other judges “[un]sullied by the smell of adecision of a single three judge panel” must hear the case “to restore thecredibility of this court in the face of a long string of statistically impossi-ble coincidences in the process of overturning a $1,000,000 plus jury ver-dict.”312 According to the court of appeals, McCraw’s recusal motionwent beyond “zealous representation,” degraded the court of appealsspecifically and the judicial process generally, and potentially violatedMcCraw’s professional responsibilities.313 Finally, the court of appealsnoted that McCraw’s “extrajudicial statements made after the opinion is-sued and again after he filed his motion for recusal” may also subjectMcCraw to discipline by the State Bar.314

amounts could not possibly have a “significant and disproportionate influence” on ajudge’s election. See Childers, 2018 WL 4870931, at *2 (distinguishing case from Capertonv. Massey, 556 U.S. 868, 873 (2009), in which “the defendant made a $3 million donation tothe judge’s election campaign, which was more than the total received from all of thejudge’s other contributors and three times the amount spent by the judge’s own campaigncommittee”).

308. Id.309. Id. at *2–3.310. Id. at *3.311. Id. The court of appeals assigned ownership of the recusal motion to McCraw spe-

cifically, noting that plaintiff appellant’s case previously had been handled by appellatecounsel until McCraw, who was plaintiff appellant’s trial counsel, appeared for the first andonly time to file the motion to recuse. Id.

312. Id.313. Id. at *3–4. The court of appeals quoted the preamble to the Texas Disciplinary

Rules of Professional Conduct and Rule 8.02(a) (quoting TEX. DISCIPLINARY R. PROF’LCONDUCT, preamble 4, stating attorneys “should demonstrate respect for the legal systemand for those who serve it, including judges, other lawyers and public officials” and TEX.DISCIPLINARY R. PROF’L CONDUCT 8.02(a), which provides: “A lawyer shall not make astatement that the lawyer knows to be false or with reckless disregard as to its truth orfalsity concerning the qualifications or integrity of a judge . . . .”). Id. at *4.

314. Id. (ordering the clerk to forward a copy of the opinion and order, along with theamended motion for recusal McCraw submitted on September 25, 2018, to the Office ofthe General Counsel of the State Bar of Texas).


XIII. MISCELLANEOUS

For only the second time,315 the Texas Supreme Court addressed in thisSurvey period responsible third party practice under Chapter 33 of theTexas Civil Practice and Remedies Code.316 This time the supreme courtgranted mandamus relief to a plaintiff from a trial court’s order allowinga defendant that failed to satisfy its disclosure requirements under TexasRule of Civil Procedure 194317 to designate a responsible third party afterthe statute of limitations had expired.318

In this personal injury case, the plaintiff was injured when a televisionfell from a wall while she sat at a table in the defendant bar and restau-rant.319 The plaintiff later sued and served the defendant with requestsfor disclosures, interrogatories, and requests for production, responses towhich were due several months before the two-year statute of limitationsexpired.320 After an agreed extension of time, the defendant restaurantresponded to plaintiff’s written discovery within two months of limita-tions, disclosing under Rule 194 that (1) there were no other potentialparties; (2) its defenses included plaintiff’s “injuries . . . were caused bypersons or entities beyond [the restaurant’s] control or employ” and“proportionate responsibility [or] comparative fault”; and (3) it “will sup-plement” with regard to any persons to be named as responsible thirdparties and stating in response to an interrogatory that: “The television inquestion was installed by Michael Graciano.”321

About two weeks after limitations expired, the defendant moved forleave to designate the television installer as a responsible third party andsupplemented its Rule 194 disclosure responses to identify the installer asa potential party, a person with knowledge of relevant facts, and a personwho may be designated as a responsible third party.322 The plaintiff op-posed the motion for leave, arguing that the defendant’s failure to supple-ment its disclosures before limitations expired precluded the designationof the installer.323 The trial court granted the defendant leave to desig-nate, the court of appeals denied plaintiff mandamus relief, and plaintiff

315. The first time was during the last Survey period in In re Coppola, 535 S.W.3d 506,507 (Tex. 2017).

316. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (per curiam).317. See TEX. R. CIV. P. 194.2(l) (requiring disclosure of “the name, address, and tele-

phone number of any person who may be designated as a responsible third party”).318. In re Dawson, 550 S.W.3d at 631 (discussing In re Coppola, 535 S.W.3d at 510, in

which the supreme court granted a defendant mandamus relief when a trial court did notallow a responsible third party designation, reasoning that “it seems equitable and right—at least under these facts—that a plaintiff get the same relief when a trial court erroneouslygrants a defendant leave to so designate”).

319. Id. at 627.320. Id.321. Id.322. Id. at 627–28.323. Id. at 628 (citing and quoting TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(d),

providing that “a defendant may not designate a responsible third party after limitationshas expired ‘if the defendant has failed to comply with its obligations, if any, to timelydisclose that the person may be designated as a responsible third party’”).


sought review by the Texas Supreme Court.324

The supreme court reviewed Chapter 33 of the Civil Practice and Rem-edies Code, noting its proportionate responsibility scheme allowed de-fendants “to designate responsible third parties”325 and introduceevidence about their fault so that the jury may apportion responsibilitybetween them and the named parties to “affect ‘the amount of recoveryavailable to a plaintiff from the named parties.’”326 Under the scheme,plaintiffs have the “option to counter the impact of” responsible thirdparty designations by joining those designated as party defendants.327

“[A]n imbalance in the proportionate[-]responsibility framework” ariseswhen a plaintiff’s joinder of a designated responsible third party is barredby limitations,328 and according to the supreme court, restrictions on de-fendants’ ability to designate were designed to prevent this imbalance.329

The supreme court discussed two such restrictions in Chapter 33: (1) mo-tions for leave to designate responsible third parties must be filed at leastsixty days before trial; and (2) a defendant may not designate a responsi-ble third party after the applicable limitations period has expired “‘if thedefendant has failed to comply with its obligations, if any, to timely dis-close that the person may be designated . . . .’”330 “With these principalsand provisions in mind,” the supreme court reviewed whether the trialcourt abused its discretion in allowing the installer’s designation after lim-itations for plaintiff’s claim against him expired.331

In finding the trial court abused its discretion, the supreme court re-jected the defendant’s contention that its initial disclosure response, cou-pled with its interrogatory answer, were sufficient to put plaintiff onnotice that the installer may be designated thereby satisfying its disclo-sure obligation.332 Specifically, the supreme court held that the defen-dant’s initial discovery responses did not comply with its obligationsunder Rule 194.2(l) or Section 33.004(d) to timely provide notice of per-sons it intended to designate, reasoning that “mentioning [the installer’s]name in one place, including boilerplate language about un-named ‘per-sons or entities’ . . . in another, and answering ‘will supplement’ to a di-rect inquiry” were not enough and did not require plaintiff to undertake

324. Id.325. Id. (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6), which defines “re-

sponsible third parties” “as persons who are alleged to have caused or contributed to caus-ing . . . the harm for which recovery of damages is sought, whether by negligent act oromission, . . . by other conduct or activity that violates an applicable legal standard, or byany combination of these.”).

326. Id. (quoting In re CVR Energy, Inc., 500 S.W.3d 67, 77 (Tex. App.—Houston [1stDist.] 2016, orig. proceding [mand. denied]).

327. Id.328. Id. (quoting Molinet v. Kimbrell, 356 S.W.3d. 407, 416 (Tex. 2011)).329. Id. at 629 (citing In re CVR Energy, 500 S.W.3d at 73).330. Id. (citing and quoting, in part, TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a),

(d)).331. Id.332. Id. (also rejecting defendant’s argument that the initial responses “put the onus on

[plaintiff] to consider [the installer’s] potential liability, including whether he was an em-ployee, agent, or independent contractor”).


an “independent investigation” after having served the Rule 194 re-quest.333 The supreme court therefore found the trial court should nothave allowed the defendant’s out of time designation of the installer as aresponsible third party, and granted plaintiff mandamus relief to “protecther right, prescribed in Section 33.004(d) of the Texas Civil Practice andRemedies Code, to not have to try her case against an empty chair.”334

XIV. CONCLUSION

In this Survey period, the Texas Supreme Court and intermediatecourts of appeal addressed several important issues involving the inter-play between statutory directives under the TCPA, TMLA, and Chapter33 of the Civil Practice and Remedies Code and the more general plead-ing and discovery practices provided by the Texas Rules of CivilProcedure.

333. Id. at 630.334. Id. 630–31.

Civil Procedure: Pre-Trial & Trial

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